HomeMy WebLinkAbout83-599 KotalikMr. Bernard S. Kotalik
107 Runson Road
Camp Hill, PA 17011
Mailing Address
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
October 13, 1983
ADVICE OF COUNSEL
RE: Representation, Restrictions, Section 3(e)
Dear Mr. Kotalik:
8.3 -599
This responds to your letter of September 21, 1983, in which you
requested Advice from the State Ethics Commission.
Issue: You would like to know what restrictions will be placed upon you, as a
former public employee, in your future contact with the Pennsylvania
Department of Transportation (PennDot) pursuant to your employment in a
private sector.
Facts: You are currently employed as a Chief Bridge Engineer in the Bridge
Division, Bureau of Highway Design, PennDot. You are voluntarily retiring
from employment with the Commonwealth effective October 19, 1983, and you
intend to seek employment in the private sector. As Chief of the Bridge
Division of the Bureau of Highway Design, you are responsible for reviewing
and recommending engineering activities associated with the Department -wide
engineering review of bridge structures and foundations. You also implement
and coordinate the State -wide Bridge Inspection Program and you are
responsible for programming review of bridge projects to insure that personnel
assignments required for administrative, engineering, and functional reports
are accomplished. You also represent the Bureau of Highway Design and the
Chief Highway Engineer on all matters pertaining to bridge design liason
activities.
You are concerned that your possibilities of obtaining employment with a
consulting engineer firm, a contractor, material supplier, fabricator of
bridge material, or other firms dealing with PennDot, will be restricted by
the State Ethics Act. Specifically, you ask:
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Bernard S. Kotalik
October 13, 1983
Paae 2
1. whether you may work for a company which deals with PennDot so long
as you do not deal with the Bureau of Highway Design directly;
2. whether there would be any restriction on your working with any firm
that provides services to the Pennsylvania Turnpike Commission;
3. whether there would be any restrictions on your working for any firm
that provides services to the municipalities in the'Commonwealth.
Discussion: As the Chief Bridge Engineer in the Bridge Division of the Bureau
of Highway Design in PennDot, you are a public employee subject to the Ethics
Act, 65 P.S. 401 et seq. Upon your retirement from PennDot, you will become a
"former public employee" subject to Section 3(e) of the Act, which states
that:
(e) No former official or public employee shall represent
a person, with or without compensation, on any matter
before the governmental body with which he has been
associated for one year after he leaves that body.
65 P.S. 403(e).
From the chart and job description which you enclosed with your request
for Advice, we conclude that the governmental body with which you are
associated is the Bureau of Highway Design. Thus, the one -year restriction is
applied only to your representation of persons before the Bureau of Highway
Design. See Anderson, 83 -014.
The Ethics Commission has determined that the "representation"
prohibition of Section 3(e) extends to such things as:
1. personal appearances before the governmental body with which you were
associated, that i,s, the Bureau of Highway Design, including but not
limited to negotiations or contracts with that body;
2. attempts to influence the Bureau of Highway Design;
3. participation in any manner before that Bureau in any case over which
you had supervision, direct involvement, or responsibility while
employed by the Bureau;
4. lobbying, that is, representing the interests of any person before
the governmental body in relation to legislation, regulations, etc.
See Russell, 80 -048; and Seltzer, 80 -044.
Mr. Bernard S. Kotalik
October 13, 1983
Page 3
The mere act of preparing and signing as preparer or as the person who
will provide technical assistance under such proposals, documents, or bids on
which your name appears as such an individual (preparer or technical advisor)
has been held to constitute an attempt to influence your former governmental
body. Kilareski, 80 -054. Therefore, such activity should not be undertaken
before the Bureau of Highway Design. Incidental to this conclusion, you
should also be advised that you would be engaging in "restricted activities"
if you were to "represent" yourself or any employer by supplying reports,
technical data, or proposals (which include your name) to any other bureau
where you know, or should know, that those reports, data, or proposals will be
submitted to the "governmental body" with which you had been associated, that
is the Bureau of Highway Design, for review or approval.
You may, however, even under the above - referenced restrictions, assist in
the preparation of any documents to be presented to or preparation associated
with appearances to be made by another person or individual before the Bureau
of Highway Design so long as you are not identified as preparer or as the
person who will provide technical assistance as outlined above. Of course,
any ban under the Ethics Act does not preclude your making general
informational inquiries to secure information available to the general public
from PennDot, the Bureau of Highway Design, or any other entity. Cutt,
79 -023. In this regard, contacts with the PennDot Bureau of Highway Design
which are simply "social" and do not entail any attempts to sell, persuade, or
"represent" as outlined above are not prohibited. You are reminded that this
restriction applies to you for the one -year period following your termination
of service with PennDot.
Finally, the specific questions which you outlined in your request for
advice are addressed below:
1. You ask whether you may work for a company which deals with PennDot
so long as you do 'not deal with the Bureau of Highway Design
directly. In light of the above discussion, any company for which
you work would not generally be precluded from doing business with
PennDot. Restrictions on your activities, as discussed above, apply
to your representation of Tie firm or company before the Bureau of
Highway Design. Any firm or company for which you work could do
business with the PennDot Bureau of Highway Design so long as you do
not personally appear or represent the firm before the Bureau, and
abide by the restrictions generally applicable to you outlined above.
Mr. Bernard S. Kotalik
October 13, 1983
Page 4
2. You ask whether there would be any restriction on your working with
any firm that provides services to the Pennsylvania Turnpike
Commission. Because the Pennsylvania Turnpike Commission is an
entity which is separate from PennDot, no restrictions would apply to
your employment with any firm or representation of such a firm
providing services to the Commission, so long as you do not allow
your name to appear as preparer or advisor on any documents submitted
to the Commission which you know or should know will be submitted to
the Bureau of Highway Design for review /approval.
3. Finally, you ask whether there would be any restrictions on you
working for any firm that provides services to municipalities in the
Commonwealth. Again, the restrictions placed upon you by Section
3(e) apply vis -a -vis the Bureau of Highway Design. Working with or
for municipalities within the Commonwealth is not restricted except
that you may not allow your name to appear as preparer or advisor on
any documents submitted to any municipalities for which you work,
which you know or have reason to believe will be sumitted to the
Bureau of Highway Design for review /approval.
Conclusion: Upon your termination of service with the Pennsylvania Department
of Transportation, Bureau of Highway Design, you will become a former public
employee subject to the restrictions imposed by the Ethics Act. Your conduct
should conform to this Advice, and you should take note of both prohibited and
allowable activities as discussed above.
Additionally, as a former public employee, you must file a Financial
Interest Statement for each year in which you held position and for the year
following your termination of service. Thus, a Statement of Financial
Interest should be filed no later than May 1, 1984, which represents the
filing required for the year following your termination of service.
Pursuant to Section 7(9)(ii), this Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance on the Advice given.
This letter is a public record and will be made available as such.
Mr. Bernard S. Kotalik
October 13, 1983
Page 5
Finally, if you disagree with this Advice or if you have any reason to
challenge same, you may request that the full Commission review this Advice. A
personal appearance before the Commission will be scheduled and a formal
Opinion from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
CW /rdp
cc: Bruce Doman, Esquire
Thomas Larson, Secretary
Sincerely,
andra S. Chr, tianson
General Coun el